92 Decision Citation: BVA 92-19820
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-52 416 ) DATE
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THE ISSUE
Whether new and material evidence has been submitted to
reopen the veteran's claims for service connection for a
back disorder, a right knee disorder and for a
gastrointestinal disorder, and, if so, whether such evidence
warrants a grant of any of the claims.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
P. Gutstein, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals on an
appeal from the July 1989 rating action of the Department of
Veterans Affairs (VA), Detroit, Michigan, Regional Office
(RO). The veteran, who is the appellant, had active service
from November 1966 to January 1970. By rating action of
November 1986, the RO denied service connection for
arthritis of the right knee, a midback condition, a stomach
condition and for other conditions not related to this
appeal. The veteran did not appeal that determination. He
filed to reopen his claim in April 1989. He filed a notice
of disagreement on August 10, 1989. He was furnished a
statement of the case on September 19, 1989. He filed a
substantive appeal on November 20, 1989. The records were
initially received by the Board on January 9, 1990. The case
was docketed on February 9, 1990, and referred on that date
to the veteran's representative who submitted arguments in
his behalf on May 16, 1990. The Board remanded the case on
June 18, 1990. The RO issued a supplemental statement of
the case on August 10, 1990. The records were returned to
the Board on February 14, 1991. The case was docketed on
February 19, 1991, and referred on that date to the
veteran's representative who submitted additional arguments
in his behalf on March 21, 1991. The case was again
remanded for procedural reasons on May 22, 1991. The
veteran was issued a supplemental statement of the case on
October 28, 1991. The records were returned to the Board on
March 31, 1992. The case was docketed on April 3, 1992, and
referred on that date to the veteran's representative who
submitted arguments on April 27, 1992. The veteran has been
represented throughout his appeal by The American Legion.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran alleges that he injured his back during his
military service and it is due to that injury that he now
has resulting problems for which he has been medically
attended. He says that his service medical records should
show that he was treated for stomach problems including a
burning sensation with pain. He argues that the spot, where
the burning and pain are, is where the ulcer turned up after
service. He says that the knee problem should also show up
in his medical records.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that new and material evidence has not
been submitted to reopen a claim of entitlement to service
connection for a back disorder, a right knee disorder, and
for a gastrointestinal disorder.
FINDINGS OF FACT
1. The RO denied service connection for a midback
condition, a right knee condition and a stomach condition by
rating action of November 1986.
2. Evidence submitted since the prior unappealed decision
of the RO is essentially cumulative in nature and does not
serve to establish that the veteran presently has a back
disorder, a right knee disorder, or a gastrointestinal
disorder as a result of his active service.
CONCLUSIONS OF LAW
1. Evidence submitted since the RO denied service
connection for a back disorder, a right knee disorder and
for a gastrointestinal disorder in November 1986 is neither
new nor material. 38 U.S.C. §§ 5107, 5108 (1992).
2. The veteran's claim for service connection for a back
disorder, a right knee disorder and for a gastrointestinal
disorder is final and may not be reopened in the absence of
new and material evidence. 38 U.S.C. §§ 1101, 1110, 1112,
1113, 5107, 5108, 7105 (1992); 38 C.F.R. §§ 3.104(a),
3.156(a), 3.307, 3.309, 19.194(a) (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board is satisfied that all relevant facts have been
properly developed in this case. There is no indication
that there are additional records which have not been
obtained. No further assistance to the veteran is required
to comply with the duty to assist the veteran mandated by
38 U.S.C. § 5107(a). The Board is also of the opinion that
new and material evidence has not been submitted to reopen
the veteran's claim for service connection for a back
disorder, a right knee disorder, or for a chronic stomach
disorder including peptic ulcer disease.
The evidence that was of record at the time of the November
1986 rating action by the RO included the veteran's service
medical records, his application for compensation benefits
and a post service VA examination. With regard to the claim
for service connection for a back disorder, the service
medical records showed that the veteran was treated for
muscle strain of the back in April 1969 at which time he had
very good range of motion without radiating pain to the legs
or arms. He was seen at the dispensary in September 1969
for back pain, having pulled a muscle; no spasm was noted.
On the examination for separation from service, a back
disorder was not noted; the spine was reported as normal.
On the veteran's initial application for compensation
benefits in August 1986, he did not show any post service
treatment for a back disorder. On a VA examination
conducted in October 1986, physical examination of the spine
was essentially normal with normal range of motion and no
muscle spasm or other abnormalities noted. On the basis of
this factual picture, the RO did not have a proper basis
upon which to grant service connection for a chronic back
disorder.
Evidence submitted since that determination includes
subsequent medical reports of low back problems including
X-ray evidence of degenerative changes of the lumbosacral
spine. Although the veteran now has arthritic changes of
the lumbosacral spine with back complaints since the 1980's,
such medical events are too distant in time from the acute
episodes for which the veteran was treated in service in
April and September 1969 to be related thereto. Inasmuch as
the back was reported as negative on the separation
examination and on the October 1986 post service
examination, continuity of symptomatology after service is
not established in order to demonstrate a chronic back
disorder that was incurred in or aggravated by service.
With regard to the issue of service connection for a right
knee disorder, the evidence that was of record at the time
of the November 1986 rating action by the RO included
service records showing that the veteran was treated for
soreness of the right knee in September 1968 after having
struck a hatch two days earlier. There is no further record
of treatment for the right knee in service. On the
examination for separation from service, no orthopedic
abnormalities were noted and the lower extremities were
reported as normal. On a VA examination conducted in
October 1986, an X-ray of the right knee revealed early or
beginning degenerative joint disease. Physical examination
of both knees was essentially the same and normal with no
crepitus, limitation of motion, effusion, tenderness or
instability present. The pertinent diagnosis was history of
right knee trauma with beginning degenerative arthritis. On
the basis of this factual picture, the RO was compelled to
conclude that service connection was not warranted for a
chronic right knee disorder.
Evidence submitted since the November 1986 rating action is
essentially cumulative in nature. Factually, the veteran
had only a minor right knee injury in service in September
1968 with no residual shown at time of separation from
service. Arthritis of the right knee initially noted by
X-ray study in October 1986, approximately 18 years after
service, is too long after service to be related to any
incident of service, in the absence of any chronic knee
disability in the intervening period. Accordingly, service
connection is not warranted for a right knee disability.
With regard to the veteran's claim for service connection
for a gastrointestinal disorder, the service medical records
do not show any complaints or treatment for a stomach
disorder. On examination of the digestive system by the VA
in October 1986, the veteran complained of occasional
stomach discomfort but the physical examination was normal.
A diagnosis was made of history of stomach problem. In the
absence of any evidence of inservice or post service chronic
stomach disorder, the RO was compelled to deny service
connection for a claimed stomach disorder.
Evidence submitted since the November 1986 rating action of
the RO includes an August 1971 report of private treatment
for peptic ulcer disease in that month. However, evidence
has not been submitted to establish that peptic ulcer
disease was present to a degree within one year following
his separation from service. In the absence of any
gastrointestinal complaints in service and the finding of a
chronic stomach disorder more than one year after separation
from service, the Board is compelled to conclude that
service connection is not warranted for a claimed stomach
disorder.
None of the above evidence is either new or material within
the meaning of these words set forth by the United States
Court of Veterans Appeals. Accordingly, the veteran's claim
is not reopened, and the decision by the RO in November 1986
remains final.
"New" evidence means more than evidence which was not
previously physically of record. To be "new," additional
evidence must be more than merely cumulative. Colvin v.
Derwinski, U.S. Vet.App. No. 90-196 (March 8, 1991). The
evidence previously of record did not establish that a back
disorder, right knee disorder or a gastrointestinal disorder
was incurred in or aggravated by service, and the additional
evidence adds nothing significant to the record. There is
no reasonable probability that the additional evidence, when
viewed in the context of all the evidence, both new and old,
would change the outcome. See Colvin, supra, Smith v.
Derwinski, U.S. Vet.App. No. 89-13 (March 15, 1991). The
additional evidence contains no objective proof whatsoever
that a back disorder, a right knee disorder or a
gastrointestinal disorder had its inception in service nor
may arthritis of the lumbosacral spine or right knee or
peptic ulcer disease be presumed to have been incurred in
service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107, 5108,
7105; 38 C.F.R. §§ 3.104(a), 3.156(a), 3.307, 3.309,
19.129(a).
ORDER
The appeal is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420